Replies

“Do you feel Michelangelo’s David is pornography? Who decides? How?”

Perfect example. Michelangelo’s works are NOT protected by copyright. Anyone in the world can make a replica without infringing. That is not going to make a one-of-a-kind masterpiece any less valuable though. But if you make a copy of a copy, you might get sued. That is, Standford University has 3d scans of these works which ARE protected under copyright law, just like translations of famous literature are.

I have been to see this piece and other famous works of art in person, and no, I do not think it is pornographic. At the same time, I would not want a similar statue adorning the local elementary. But that is the local community standard you advocate - decency. Decency is a personal view and becomes a family and community standard by the principle of freedom of association. That is, if I do not want to have to see or have my family see billboards displaying half naked models promoting a chat line, I should be able to form a community of like-minded people where it is not allowed to advertise this way.

Your question does not seem to come from a conservative perspective. It sounds like something a liberal or libertarian might ask. You are aware that there is such a thing as pornography, right? Just like there is such a thing as robbery or murder or assault or fraud. A lot of it has to do with intent. Are you claiming that pornography is impossible to define so we should not have any laws regarding it? Imagery designed to titillate or otherwise cause sexual arousal would be pornographic. It is based on the intent rather than the effect.

Decency is more subjective. It is a personal and community standard. Obscenity is a different standard which has to do with criminal standards for sexual (and other) conduct. Rape is a crime. To create images of it and make a profit from it is also criminal. Child pornography is a crime. There were other standards in the past that would have landed a large percentage of Internet pornographers in jail.

“So, you would have a Federal bureaucrat with his fingers trembling over his keyboard deciding who could speak and who could not.”

Wow, you built the straw man and then set him on fire, you arsonist, you. I am talking about taking away their ownership of their “speech” rather than their ability to speak. There is a huge difference. They are opposite really. Do federal laws restricting child pornography cause the overwhelming restrictions on free speech you are describing? Are you okay with child porn just as long as the pornographer gets his fair share of the royalties? If not, then what is your basis of what should be protected speech and what should not? And what (so-called) speech should or should not be criminal (if porn is truly a form of speech)?

“I think that distinction a false one. You are conflating communication with copyright protection.”

Copyright, patents and trademarks must be registered in order to receive protection. Trade secrets can be protected by non-disclosure agreements and using appropriate measures to safeguard real secrets. If someone tells you a great idea for a business, story, or invention, you are free to repeat it to anyone you wish or to implement these ideas unless ip protection has been implemented in some form. This could be as simple as getting a verbal agreement not to compete or disclose, but that might not stand up in court.

“You have just swept away copyright protection for the entire music and movie industry. Yet there are many who could make a strong argument that the protection of their property has in fact been useful to industry; else the consumer electronics business would not exist upon which was built the computer industry.”

You may have misunderstood the point. I am not arguing that the courts should strike down existing ip laws because they may not meet some “usefulness” test. I am saying it is the duty of Congress to make laws that serve the people in general. Hollywood gets the full weight and force of our federal government to insure they are making profits from their goods. What do taxpayers get in return for this? This is different than law enforcement providing for our protection and defense which we all enjoy. It is similar to Congress granting easement rights to the cable companies back in the eighties I think, where they could run cable lines on everyone’s private property. What did land owners get in return? Public access television, that’s what. Not a good deal. Legal, but a bad deal for Americans. Congress should have told the cable industry that all locally broadcast T.V. stations had to be carried and available for free to every landowner whose land was affected by the easement. I am not talking about what is Constitutionally legal, just what makes good legal sense under the Constitution.

“Porn built the Internet.”

Well, your or my ancestors may have produced our lineage through incest, but that does not make it a good thing. I hope you are not going to try to make a case for porn being beneficial to society here on a conservative, family-friendly forum.

“Here you admit the flaw in your entire argument. You would prefer not to argue it because once the power is legislated that is EXACTLY what you MUST do in EVERY single case because you are relying upon police powers to enforce your preferences a line MUST be drawn that the producer can understand.”

I disagree. There are plenty of ambiguous laws. That does not mean it is a good thing. As I said above, these things can be defined so that there is little room for knowing when the line is crossed. Again, as I said earlier, porn depicting penetration was considered obscenity (a crime) up until Clinton decided not to enforce the laws. I Dream of Genie was the first T.V. show to allow a woman’s belly to be shown on public television (she had her navel covered when the show began), because it was considered indecent to broadcast this. A lot of these views changed culturally in the sixties.

“If you choose to violate copyright you risk being prosecuted and punished for said crime. Nobody is stopping you there any more than the Founders. Go for it. Don’t expect me to approve as if you are some champion for a subjective standard of morality.”

I already answered earlier that a general support of copyright law was the conservative position and if something is worth watching, it is probably worth paying for the right to do so.

“Yet we are slowly winning on the abortion issue not by banning medical procedures but by changing people’s hearts. Accordingly, I suggest you focus your attentions there because there is no number of laws sufficient to prevent a weak heart descending to evil.”

Excellent point. I agree with you on that 100%.

“There is your window into civil liability.”

If a clear distinction of what is decent or obscene is difficult, civil liability to the entertainment industry would be even more difficult. But you might have a good idea; so I think I would support the attempt. Couldn’t hurt.

“The only difference is the medium. It is akin to offering that one can say anything they want as long as it is not within earshot; else you will deny them air... There is no such thing as “ip protection;’ there is copyright protection and ip ACCESS, which you would deny.”

That comparison does not even begin to hold up. Denying someone air is killing a person. I am starting to wonder if you understood what I was saying. Ip = intellectual property. Perhaps you thought I meant Internet protocol. Both abbreviations are correct in context, but I am not talking about freedom of speech online. I am talking about the opposite - ip really is the freedom to restrict the speech of others in limited cases.

Ip includes, among other things, copyright, trademark, patent and legal enforcement of nondisclosure agreements. These are intended to allow government supported monopolies for a LIMITED time. It was never meant for companies like Microsoft to parlay their patents into a never-ending monopoly which is based on manipulating ip rather than true competition in the marketplace through innovation.

I think it is unfortunate that when conservatives lost the culture war regarding obscenity laws, we did not fall back to the next line of defense by making it difficult for pornographers to make huge money through government sanctioned restrictions on free speech (i.e. the restriction of copying publicly shared ideas and speech). But it might not be too late. There might be enough people who could come to see the light on removing ip protection from porn. That wold not be a limitation on free speech, but an expansion of it.